Chapter 450

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AN ACT PROVIDING GREATER CONSUMER PROTECTION POWERS TO THE BOARDS WITHIN THE DIVISION OF PROFESSIONAL LICENSURE.

Be it enacted by the Senate and House of Representatives
in General Court assembled, and by the authority of the same,
as follows:

SECTION 1.
Chapter 13 of the General Laws is hereby amended by
inserting after section 9B the following section:-

Section 9C. The members of the boards of registration shall be public
employees for the purposes of chapter 258 for all acts or omissions within the
scope of their duties as board members.

SECTION 2.
Section 61 of chapter 112 of the General Laws, as
appearing in the 2002 Official Edition, is hereby amended by inserting after
the first paragraph the following 3 paragraphs:-

A board of registration under the supervision of the division of
professional licensure may discipline the holder of a license, certificate,
registration or authority issued pursuant to this chapter or
chapters 141 and 142 if it is determined, after a consent agreement between
the parties or after an opportunity for an adjudicatory proceeding conducted
pursuant to
chapter 30A, that such holder has:

(1) engaged in conduct which places into question the holder's competence to
practice the profession including, but not limited to, gross misconduct;
practicing the profession fraudulently; practicing his profession beyond the
authorized scope of his license, certificate, registration or authority;
practicing the profession with gross incompetence; or practicing the profession
with negligence on 1 or more than 1 occasion;

(2) engaged in the practice of his profession while the ability to
practice was impaired by alcohol or drugs;

(3) violated any law, rule or regulation of the board of registration
governing the practice of the profession;

(4) been convicted of a criminal offense which is reasonably related to the
practice of the profession;

(5) engaged in dishonesty, fraud or deceit which is reasonably related to
the practice of the profession;

(6) knowingly permitted, aided or abetted an unauthorized person in
performing activities requiring a license, certificate, registration or
authority; or

(7) had a license, certificate, registration or authority issued by another
state or territory of the United States, the District of Columbia, or a
foreign
state or nation with authority to issue such a license, certificate,
registration or authority revoked, cancelled, suspended, not renewed or
otherwise acted against, or if the holder has been disciplined, if the basis
for the action would constitute a basis for disciplinary action in the
commonwealth.

Notwithstanding any general or special law to the contrary, a board of
registration under the supervision of the division of professional licensure,
may by a majority vote and after a consent agreement between the parties or
after an
opportunity for an adjudicatory proceeding conducted pursuant to chapter 30A,
upon determination made that the holder of a license, certificate, registration
or authority issued by any such board of registration is subject to discipline
based
on any provision enumerated in this section, undertake 1 or more of the
following actions:-

(1) suspend, revoke, cancel, decline to renew, or place on probation such
license, certificate, registration or authority;

(2) reprimand or censure a holder;

(3) assess upon the holder a civil administrative penalty, as determined by
the board, not to exceed $100 for a first violation; $500 for a second
violation; $1,500 for a third violation; or $2,500 for a fourth or
subsequent violation;

(4) require the holder to complete additional education and training as a
condition of retention or future consideration of reinstatement of the
license, certificate, registration or authority;

(5) require the holder to practice under appropriate supervision for a
period of time as determined by the board as a condition of retention or future
consideration of reinstatement of the license, certificate, registration or
authority;

(6) require the holder to participate in an alcohol or drug rehabilitation
program as a condition of retention or future consideration of reinstatement of
the license, certificate, registration or authority.

Nothing in this section shall be deemed a limitation on a board's authority
to impose such reasonable sanctions as it deems appropriate by the board after
a hearing or by a consent agreement. A person sanctioned under this section
shall
be subject to such other sanctions or punishment provided by law. The boards
shall promulgate such rules and regulations not inconsistent with chapter 30A
as necessary for the filing of charges and the conduct of proceedings.

SECTION 3.
Section 64 of said chapter 112, as so appearing, is
hereby amended by striking out, in line 5, the figure "(8)" and inserting in
place thereof the following figure:- (7).

SECTION 4.
Said section 64 of said chapter 112, as so appearing, is
hereby further amended by adding the following sentence:- Where a statute
provides that
a court
other than the supreme judicial court may review a board's action, such review
shall be conducted in accordance with the standards of review provided in
paragraphs (3) to (7), inclusive, of said section 14 of said chapter 30A.

SECTION 5.
Said chapter 112 is hereby further amended by striking out
section 65, as so appearing, and inserting in place thereof the following
6 sections:-

Section 65. (a) Whoever continues to practice a trade or profession after
his certificate, registration, license or authority to do so has been
suspended, revoked or cancelled under section 61, and while such disability
continues, shall be punished by a fine of not more than $2,500 or by
imprisonment for not more than 6 months, or both.

(b) Notwithstanding any general or special law to the contrary, each board
of registration under the supervision of the division of professional licensure
and each board of registration under the supervision of the department of
public health may, after a consent agreement between the parties or after an
opportunity for an adjudicatory proceeding held pursuant to chapter 30A, assess
and collect a civil administrative penalty of not more than $1,000 for the
first violation and not more than $2,500 for a second or subsequent violation
upon a person who practices a trade or profession at a time when his license,
certificate, registration or authority to do so has been suspended, revoked or
cancelled by the board of registration that issued the license, and upon any
person who knowingly practices a trade or profession at a time when his
license, certificate, registration or authority to do so has expired; provided,
however, that if a licensee has, in accordance with any law and with board
regulations, made timely and sufficient application for a renewal, his license
shall not expire until his application has been finally determined by the
board;
provided further, that prior to the assessment of a civil administrative
penalty under this section, the board shall notify the licensee that he has at
least 90 days after the date of expiration within which to submit an
application for renewal during which time the board shall waive any applicable
penalties pursuant to this paragraph. An assessment of a civil administrative
penalty under this section shall bar a subsequent imposition of a criminal
penalty for the same violation and an imposition of a criminal penalty under
this
section shall bar a subsequent assessment of a civil administrative penalty for
the same violation.

(c) A board may apply to the appropriate court for an order enjoining the
unlicensed practice of a trade or profession or for an order for payment of an
assessed penalty or for such other relief as may be appropriate to enforce this
section.

Section 65A. Notwithstanding any general or special law to the contrary,
each board of registration under the supervision of the division of
professional licensure and each board of registration under the supervision of
the department of public health may, after a consent agreement between the
parties or after an opportunity for an adjudicatory proceeding held pursuant to
chapter 30A, assess and collect a civil administrative penalty not to exceed
$1,000 for the first violation and a civil administrative penalty not to exceed
$2,500 for a second or subsequent violation upon a
person who, without holding the required license, certificate, registration or
authority, engages in the practice of a trade or profession for which a
license, certificate, registration or authority is required. Nothing
in this section shall affect, restrict,
diminish or limit any other penalty or remedy provided by law. A board may
apply to the appropriate court for an order enjoining the unlicensed practice
of a trade or profession or for an order for payment of an assessed penalty or
for such other relief as may be appropriate to enforce this section.

Section 65B. A board of registration under the supervision of the
division of professional licensure having jurisdiction over a licensee whose
continued practice poses an immediate and serious threat to the public health,
safety or welfare may suspend or refuse to renew the holder's license,
certificate, registration or authority pending a hearing on the merits of the
allegation against the holder. Such board shall hold a
hearing pursuant to chapter 30A on the necessity for the suspension or refusal
to renew within
10 days of that action. At the time of the suspension or refusal to renew,
the board shall issue to the licensee a
written summary
suspension order which specifies the findings of the board and the reasons for
its summary suspension and the date, time and place of
the
10-day hearing. At the request of the licensee, the board may
reschedule the hearing to a date and time mutually agreeable to the board and
the licensee. Any such rescheduling of the hearing granted at the licensee's
request shall not operate to lift or stay the summary suspension order. If
the hearing is not held within 10 days of the board's summary suspension order
or such
further time as may be agreed to, the license, certificate, registration
or
authority against which action was taken shall be reinstated. At the
adjudicatory hearing on the necessity for summary suspension, the board shall,
by a preponderance of the evidence, establish why the summary suspension order
should continue in effect pending the final disposition of the complaint. The
board shall
issue a preliminary written decision within 10 days of the summary suspension
hearing. Following the hearing, a continuing suspension imposed by a board
shall remain in effect until the conclusion of any formal adjudicatory
proceeding on the merits of the allegations against the holder, but any such
proceeding shall occur within 60 days of the summary
suspension order, or as the parties may otherwise agree. The
board shall render its written decision not later than 30 days after
the formal adjudicatory proceeding or as the parties may otherwise agree. A
licensee subject to a disciplinary action pursuant to this section may
seek judicial review of the board's final decision pursuant to
chapter 30A. The division, after proper notice and
hearings, shall adopt rules and regulations governing the summary suspension
procedure authorized by this section. Nothing in this section shall be deemed
to limit any board of registration's summary suspension authority.

Section 65C. Meetings of the boards held for the purpose of conducting
investigative conferences prior to the issuance of an order to show cause or
for purposes of discussing the terms of a negotiated settlement of a complaint
against a licensee shall not be considered open meetings within the meaning of
section 11A 1/2 of chapter 30A, but a licensee shall have
access to records of any meetings concerning the licensee as may be necessary
for the defense of his license at an adjudicatory proceeding.

Section 65D. Twenty per cent of all civil administrative penalties assessed
by boards under the supervision of the division of professional licensure
pursuant to sections 61 and 65 to 65D, inclusive, shall be deposited in
the Division of Professional Licensure Trust Fund established pursuant to
subsection (a) of section 35V of chapter 10 and the remaining 80 per cent
shall
be
deposited in the General Fund. Twenty per cent of all civil
administrative penalties assessed by boards under the supervision of the
department of public health pursuant to sections 65 and 65A of this chapter
shall be deposited in the Quality in Health Professions Trust Fund established
pursuant to subsection (a) of section 35X of said chapter 10 and the remaining
80
per cent shall be deposited in the General Fund.

Section 65E. Each board of registration under the supervision of the
division of professional licensure and each board of registration under the
supervision of the department of public health which takes any action against
an individual who practices a trade or profession at a time when his license,
certificate, registration or authority to do so is not valid because it has
been suspended, revoked or cancelled by the board of registration that issued
the license, certificate, registration or authority shall report the
individual to the attorney general of the commonwealth for review.

SECTION 6.
Section 87I of said chapter 112, as appearing in the 2002
Official Edition, is hereby amended by striking out, in lines 8 to 10,
inclusive, the words ", and shall furnish to the board a certificate of a
registered physician that such student is not afflicted with any contagious or
infectious disease".

SECTION 7. Said section 87I of said chapter 112, as so appearing, is
hereby further amended by striking out the tenth sentence.

SECTION 8.
Said section 87I of said chapter 112, as so appearing, is
hereby further amended by striking out, in lines 54 and 55, the words "with a
physician's statement as aforesaid, and" and inserting in place thereof the
following words:- and pays.

SECTION 9.
Section 87J of said chapter 112, as so appearing, is
hereby amended by striking out, in lines 10 to 12, inclusive, the words "upon
the presentation of a certificate from a registered physician as to the freedom
from contagious or infectious disease of the holder of such card or insignia".

SECTION 10.
Section 87K of said chapter 112, as so appearing, is
hereby amended by striking out, in lines 9 and 10, the words ", or that
infectious or contagious disease has been imparted thereat".

SECTION 11.
Said section 87K of said chapter 112, as so appearing, is
hereby further amended by striking out, in lines 13 to 15, inclusive, the
words "or it is determined by a member of the board that infectious or
contagious disease has been imparted to any person thereat".

SECTION 12.
Section 87L of said chapter 112, as so appearing, is
hereby amended by striking out, in lines 2 to 4, inclusive, the words ", for
having epilepsy or other disease endangering the health and safety of persons
whom he may serve" and inserting in place thereof the following word:- or.

SECTION 13.
Said section 87L of said chapter 112, as so appearing, is
hereby further amended by striking out, in line 6, the words ", or for having
imparted any contagious or infectious disease".

SECTION 14.
Section 87CC of said chapter 112, as so appearing, is
hereby amended by striking out the second and fifth paragraphs.